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tion, equally accordant with the words and sense thereof, will enforce and protect them. Prigg v. Commonwealth of Pennsylvania, 16 Pet., 612. $ 26.

majority of court.- The supreme court will not render an opinion upon the constitutionality of a law unless four judges concur. Briscoe v. Commonwealth’s Bank of State of Kentucky, 8 Pet., 118.

$ 27. negative implied.- In construing the constitution, the court may imply a negative from affirmative words where the implication promotes, not where it defeats, the intention. Cohens v. Virginia, 6 Wheat., 264,

S 28. Construing state constitutions. The rule of construction of state constitutions is that they are not special grants of power to legislative bodies, like the constitution of the United States, but general grants of all the usually recognized powers of legislation not actually prohibited or expressly excepted. The exception must be construed strictly as against those who stand upon it, and liberally in favor of the government. Southern Pac. R. Co. v. Orton, 6 Saw., 157.

$ 29. On the constitutionality of laws.- Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional unless it be clearly so.

Munn v. Illinois, 4 Otto, 113 (SS 1349-67).

3 30. The courts will declare a law uncopstitutional only when circumstances render that duty imperative. Trade Mark Cases, 10 Otto, 96; Ex parte Randolph, 2 Marsh., 471.

8 31. A law will not be held unconstitutional unless its incompatibility with the constitution be clear. Fletcher v. Peck, 6 Cr., 87 (S$ 1805-12); County of Livingston v. Darlington, * 11 Otto, 407.

$ 32. The motives of the legislature in passing a law will not be inquired into in a contest between individuals. Fletcher v. Peck, 6 Cr., 87 (S$ 1805–12).

$ 33. A court cannot declare a statute invalid unless it is prohibited by some express provision of the constitution or by necessary implication. Its repugnance to justice, to what the court deems sound policy, or to general principles of jurisprudence, furnishes no ground for refusal to enforce it. Talcott v. Township of Pine Grove, * 1 Flip., 120.

$ 34. It is a principle in constitutional law that departmental and legislative action will conclude the courts in all cases where any possible interpretation can uphold actual investments and contracts. Ibid.

$ 35. It is inadmissible to institute a judicial inquiry into the motives or intention of legis. lators in the enactment of a statute, and make the validity of the enactment depend upon the result of such an examination. Kountze v. City of Omaha, 5 Dill., 443.

$36. The authority of the judiciary to annul laws deliberately and solemnly passed, in the form prescribed by the constitution, is one of great delicacy, and should always be exercised with great caution and deliberation. Darby v. Wright, * 3 Blatch., 170.

$ 37. In whatever language a statute may be framed, its purpose may be determined by its natural and reasonable object; and if it is apparent that the object of the statute, as judged by that criterion, is to override some constitutional prohibition, it will be declared invalid, regardless of its assumed object. In re Parrott, 1 Fed. R., 481 (SS 982-1007).

3 38. Where the decision in a case depends on the alleged inconsistency of a legislative provision with the fundamental law, it is the duty of the court to compare the act with the constitution, and if the former cannot, upon a fair construction, be reconciled with the latter, to give effect to the constitution and not the statute. Hepburn v. Griswold, 8 Wall., 603.

$ 39. Where an act of the legislature is susceptible of two constructions, one of which will overthrow the act or make it unconstitutional, and the other will support the act and give it effect, the latter is to be adopted by the judicial branch of the government. This principle commends itself with great force to the federal courts when they are called upon to expound and apply state legislation, especially in cases where the revenue law of a state is in question. St. Louis National Bank v. Papin, 4 Dill., 32.

$ 40. An act of the legislature contrary to the constitution is not the law, and is void. Marbury v. Madison, 1 Cr., 177.

$ 41. Acts which are prohibited by law can impose no obligations on any one, nor will the law notice any controversy between persons who have united in violation of the law. Nessmith v. Shelden, 4 McL., 377.

$ 42. Where there is a plain and obvious conflict between the constitution and an act of congress, there is no room for construction, no ground for argument, and in all such cases not only the judiciary department, but every department, and, indeed, every individual who is required to act upon the subject-matter, must determine for himself what the law of the Jand really is, as applicable to the case in hand. The conflict, in such a case, is between the higher and the lower law, and the lower law must succumb, and the constitution must be obeyed, though the statute may be broken. But if the conflict is doubtful, it is better for the persons affected to obey the law and leave persons interested to their resort to the courts.

Rights of Settlers,* 10 Op. Att'y Gen'l, 61; State Lottery Co. v. Fitzpatrick,* 3 Woods,


§ 43. An unconstitutional law affords no justification to an officer for an act injurious to an individual. Astron v. Hammond, 3 McL., 110; Osborn v. Bank of United States, 9 Wheat., 738 (SS 2363-87).

$ 44. A void law can afford no protection to any one who acts under it. Although he may proceed under color of a law upon the statute books, yet the law, being unconstitutional, can afford no protection. Woolsey v. Dodge, 6 McL., 146.

$ 45. In case of an application for injunction or mandamus against a public officer, if he pleads the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void. Board of Liquidation v. McComb, 2 Otto, 541.

$ 46. The question whether a certain pretended act is a law or not is a judicial question, to be settled and determined by the courts and judges, and there can be no such thing as a person being estopped to deny the invalidity of any such act. Town of South Ottawa v. Perkins, 4 Otto, 267.

$ 47. Where a party has availed himself for his benefit of an unconstitutional law, he cannot, in a subsequent litigation with others not in that position, aver its unconstitutionality as a defense, although such unconstitutionality may have been pronounced by a competent judicial tribunal in another suit. In such cases the principle of estoppel applies with full force and conclusive effect. Daniels v. Tearney, 12 Otto, 421.

$ 48. The judicial department of every government is the rightful expositor of its laws, and emphatically of its supreme law. If, in a case depending before any court, a legislative act shall conflict with the constitution, a court must exercise its judgment upon both, and the constitution must control the act. The court must determine whether a repugnancy does or does not exist; aud in making this determination must construe both instruments. Bank of Hamilton v. Dudley, 2 Pet., 524; Walnut v. Wade, 13 Otto, 683; United States v. Riley, 5 Blatch., 207.

$ 49. When the binding force of an act of the legislature of any state is drawn in question for its supposed repugnancy to the federal constitution, although no court can entertain any doubt of its right to pronounce it invalid, yet it is no more than becoming to proceed with caution, and with more than ordinary deliberation. Presumptions will ever exist in faror of the law, for it will not readily be supposed that any state legislature, which is as much bound by the constitution, and is under the same solemn sanctions as the courts to regard it, have either mistaken its meaning, or knowingly transcended their own powers. If, then, by any fair and reasonable interpretation, where the case is at all doubtful, the law can be reconciled with the constitution, it ought to be done, and a contrary course pursued only where the incompatibility is so great as to render it extremely difficult to give effect to the former without violating some provision of the latter. Adams v. Storey, 1 Paine, 80; Pereles 2. City of Watertown, 6 Biss., 79; United States v. Rhodes, 1 Abb., 52; Lothrop v. Stedman, 13 Blatch., 134; In re Solomon, 2 Hughes, 164; Falconer v. Campbell, 2 McL., 201; Harris v. Steamboat Henrietta, Newb., 284; Legal Tender Cases, 12 Wall., 457; Brown v. State of Maryland, 12 Wheat., 419 (SS 1466–70); County of Livingston v. Darlington,* 11 Otto, 407; Munn v. Illinois, 4 Otto, 113 (88 1349–67); Luling v. City of Racine, 1 Biss., 317; Baltimore & Ohio Ry Co. v. Van Ness, 4 Cr. C. C., 600; Ware v. Hylton, 3 Dal., 223; Township of Pine Grove v. Talcott, 19 Wall., 666; Campbell v. United States, * 10 Law Rep., 401.

$50. In a case which requires the ascertainment of a fact upon which the authority of a legislature to do an act is to depend, the fact that the legislature has exercised such authority carries with it the presumption that the fact had been ascertained, and that the legislature acted within the scope of its authority. So where the constitution of a state provided that no city should be incorporated unless it contained five thousand inhabitants, and a city was incorporated, it was held that the validity of the act of incorporation could not be inquired into collaterally on the ground that the city had less than the required number of inhabitants. Judson v. City of Plattsburg, 3 Dill., 183.

$51. The decision of the supreme court of the United States, that a law is constitutional, is binding upon juries as well as upon coarts. United States v. Shive, Bald., 511.

852. Where an act has been before the supreme court several times, and its constitutionality has not been questioned, it seems that the inferior federal courts are bound to presume it valid unless satisfied that that point passed without observation in the court above. Sample v. United States, Chase's Dec., 261.

$53. All constitutional laws of congress are binding on the people of all the states, whether they consent to be bound thereby or not. Every such act is passed by the will of the people of the United States, expressed through their representatives, on the subject matter of the enactment, and when passed, becomes the supreme law of the land, and operates by its own



force on the subject-matter, in whatever state or territory it may happen to be. The proposition, therefore, that such a law cannot operate upon the subject-matter of its enactment without the express consent of the people of the state where it may happen to be, contains its own refutation. Polları v. Hagan, 3 How., 224.

$ 54. The courts of the United States cannot hold a law unconstitutional upon the ground that it violates treaty obligations. Such a question is an international one, to be settled between the foreign nations interested therein and the political department of the government. Gray v. Clinton Bridge, * 7 Am. L. Reg. (N. S.), 151.

$ 55. Where a state statute is invalid, a proviso therein cannot be relied on as a contract, the impairment of which is forbidden by the constitution. People v. Commissioners of Taxes, 4 Otto, 417.

$ 56. Provision directory, when.- That provision of the constitution of Mississippi, that “the introduction of slaves into this state as merchandise, or for sale, shall be prohibited from and after the 1st day of May, 1833," was merely directory on the legislature, and is not a prohibition per se. Groves v. Slaughter, 15 Pet., 499.

$57. Legislature cannot bind successor.- A legislative act does not bind a subsequent legislature. Each successive legislature possesses the same power and may exercise the same discietion. There is no mode by which a legislative act can be made irrepealable except it assume the form and substance of a contract. Bloomer v. Stolley, 5 McL., 161.

$ 58. Legislation required to enforce constitution.- When the provision of a constitution points to something ntore to be done, and looks to some future time for the accomplishment of what is required, the general rule is that it contemplates legislation to carry it into effect. So a provision of a constitution, which provides that “dues from corporations shall be secured by individual liability of the stockholders” to an amount equal to their stock, looks to future legislation to carry it into effect. Morley v. Thayer, 3 Fed. R., 739.

$ 59. Implied power of the legislature.- Where a constitution declares that “the legislature shall provide for the incorporation and organization of cities and villages, and shall restrict their powers of taxation, borrowing money, contracting debts and loaning their credit," it implies that the powers to be restricted may be exercised, and is sufficient authority for the legislature to empower cities, townships and villages to issue their bonds, as a loan or donation, in aid of the construction of any railroad. Township of Pine Grove u, Talcott, 19 Wall., 666.

$ 60. If power is granted by the legislature to do an act, and the power is not limited by express words, an inferential limitation cannot be sustained which would defeat the object of the law. Cook v. Commissioners of Hamilton County, 6 McL., 119.

$ 61, Acts void in part.- An act may be void in part and good in part. Milne v. Huber,* 3 McL., 212.

$ 62. Statutes which are constitutional in part only will be upheld so far as they are not in conflict with the constitution, provided the allowed and the prohibited parts are severable. Penniman's Case, * 13 Otto, 714. An invalid provision of a law will not affect another and distinct provision which is valid. Duer v. Small,* 17 How. Pr., 205.

$ 63. The same statute may be in part constitutional and in part unconstitutional, and if the parts are wholly independent of each other, that which is constitutional may stand, while that which is unconstitutional will be rejected. But if they are so mutually connected with, and dependent on, each other, as conditions considerations or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected must fall with them. The point to be determined in all such cases is whether the constitutional provisions are so connected with the general scope of the law as to make it impossible, if they were stricken out, to give effect to what appears to have been the intention of the legislature. Allen v. Louisiana, 13 Otto, 83; Railroad Co. v. Schutte, 13 Otto, 118; Penpiman’s Case, * 13 Otto, 714; Milne v. Huber,* 3 McL., 212; E.x parte Touchman, 1 Hughes, 602; Duer v. Small,* 17 How. Pr., 205; S. C.. 4 Blatch., 268; Packet Co. v. Keokuk, 5 Otto, 80 (53 1420-23); Briscoe v. Bank of Commonwealth of Kentucky, 11 Pet., 257 (SS 539-553); Tilley v. Savannah, etc., R. Co., 5 Fed. R., 641 (SS 2143—57).

$ 64. Amendments.-- The first ten amendments to the constitution are restrictions on the federal government. Withers v. Buckley, 20 How., 84 (5$ 207–209); Walker v. Sauvinet, 2 Otto, 90 (SS 690-692); Pervear v. The Commonwealth, 5 Wall., 473; Barron v. Mayor of Baltimore, 7 Pet., 247; United States v. Crosby, 1 Hughes, 456; Griffing v. Gibb, McAl., 220; Edwards v. Elliott, 21 Wall., 532; Pearson v. Yewdall, 5 Otto, 296; Twitchell v. The Commonwealth, 7 Wall., 321; Clark v. Dick, 1 Dill., 8.

$ 65. An amendment to a constitution is a fundamental and paramount law, and its operation and effect cannot be limited or controlled by previous laws or constitutions in conflict


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with it, or any previous policy of the government. Buckner v. Street, 1 Dill., 257; Territory of Kansas v. Reyburn, McCahon, 141.

$ 66. In determining the constitutionality of an act of congress, the fact that the law was passed immediately after the adoption of an amendment to the constitution, and in the supposed exercise of the powers conferred by the amendment, and by a congress composed largely of the men who framed the amendment, is entitled to great weight as a legislative construction and interpretation of the provisions of the law. United States v. Jackson, 3 Saw., 59.

$ 67. The right of freedom of speech, and the right peaceably to assemble, and other rights enumerated in the first eight amendments to the constitution, are thereby protected only against the legislation of congress, and not against the legislation of the states. These rights, therefore, were not secured to the people of the United States until the fourteenth amendment to the constitution, because till then they might be impaired by state legislation; but now they are not only secured from congressional interference, but, by the amendment, from state interference also. United States v. Hall, * 13 Int. Rev. Rec., 182.

$ 68. Taking private property.- A statute repealing the charter of an incorporated street railway company, and providing that another company should operate its roads along the same streets, and that the latter should take the tracks of the former, subject to the law relating to the taking of land by railway companies, and the compensation therefor, is valid. Greenwood v. Freight Co., 15 Otto, 22.

$ 69, A state statute which authorizes the taking of the fee to land for a boom, on the making of just compensation, by a boom company incorporated by the legislature, and under its control, is constitutional. Patterson v. Mississippi, etc., Boom Co., 3 Dill., 466.

$ 70. Regulation of railroad rates is not a taking of private property for public use. Tilley v. Savannah, etc., R. Co., 5 Fed. R., 641 (SS 2143-57).

$ 71. An act providing for the dredging of an entire harbor or bay, and the payment of the expense thereof by the one county lying next the harbor, is not an unconstitutional assumption of legislative power, nor is it a taking of private property for public use without compensation. Taxation can never be called an exercise of the right of eminent domain; it is a means of obtaining the necessary funds for the conduct of the operations of the government. County of Mobile v. Kimball, 12 Otto, 691 (SS 1177-82).

$ 72. Legalizing void laws.— A statute may legalize acts done under authority of an unconstitutional law, and this may be done by implication. Campbell v. City of Kenosha, 5 Wall., 194; Commercial National Bank of Cleveland v. City of Iola, 2 Dill., 355.

$ 73. A legislature cannot give validity to a law not constitutionally passed, by referring to it in a subsequent statute as a valid and subsisting law. Town of South Ottawa r. Perkins, 4 Otto, 270.

$ 74. Vested rights.- A law reviving a claim already barred by the statute of limitations, is unconstitutional as destroying vested rights. Lockhart v. Horn, 1 Woods, 628.

$ 75. A state legislature cannot divest an eleemosynary corporation, such as a seminary of learning, or any one else, of its title to lands lawfully acquired. Board of Trustees of Vincennes University v. State of Indiana, 14 How., 277; Vanhorne v. Dorrance, 2 Dal., 313; City of Mobile v. Eslava, 16 Pet., 247.

$ 76. It seems that a state legislature has a right to declare by law that estates tail shall become estates in fee simple in the tenant in tail, especially when all parties are before it. Such an act would not affect existing rights, because there exist no vested rights in the issue of the tenant in tail till his death. And if the legislature can do it by general law, they can do it by special law, or by resolution, which is the same thing. De Mill v. Lockwood, 3 Blatch., 63; Croxall v. Shererd, 5 Wall., 268.

$ 77. There is no such vested right in a judgment, in the party in whose favor it is rendered, as to preclude its re-examination and vacation in the ordinary modes provided by law, even though an appeal from it may not be allowed. And an award by commissioners of damages for property taken for public use, when approved by a court, possesses no greater sanctity. Garrison v. City of New York, 21 Wall., 196.

$78. There is nothing in the constitution of the United States which prohibits the legislature of a state or territory from exercising judicial functions, nor from passing an act which dirests rights vested by law, provided its effect be not to impair the obligation of contracts. Contracts are not impaired but confirmed by certain acts. Randall v. Kreiger, 23 Wall., 137.

$ 79. It cannot be objected that an act of the legislature of a territory, confirming in the grantee a title conveyed under power of attorney given by a husband and wife, the deed being before ineffectual for want of a law of the territory authorizing the execution of such an instrument by a wife, destroys vested rights, the husband, who was the owner of the land having obtained the purchase money, and this having become a part of his estate and passed to his wife on his death. Ibid.

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$ 80. Searches and seizures. The right to be secure in one's house is not a right derived from the constitution of the United States, but existed long prior thereto at common law, and cannot be said to come within the meaning of the words “right, privilege and immunity granted or secured by the constitution of the United States.” United States v. Crosby, 1 Hughes, 457.

$ 81. Summary process for the collection of debts due the government is not a search warrant, and may issue without affidavit. Murray v. Hoboken Land and Improvement Co., 18 How., 272 (SS 676–689).

$ 82. Section 49 of the act of July 1, 1868 (15 Statutes at Large, 144), which gives supervisors of the internal revenue the right to examine such books and papers of bankers, brokers, etc., as are connected with the operations of the internal revenue laws, is not unconstitutional either as being a violation of that provision of the constitution which protects persons against unreasonable searches and seizures, or of the provisions which protect parties from being compelled to testify against themselves in criminal prosecutions. Stanwood v. Green, 2 Abb., 189; In re Strause, 1 Saw., 605; Stockwell v. United States, * 2 Int. Rev. Rec., 88; United States v. Three Tons of Coal, 6 Biss., 383; United States v. Distillery No. 28, 6 Biss., 487; In re Platt, 7 Ben., 262.

$ 83. The restriction in the fourth amendment to the constitution of the United States against violating the right of persons to be secure in their persons against unreasonable seizures, and the restriction in the fifth amendment against depriving of liberty without due process of law, have no relation to the subject of extradition for crime as regulated by treaty. In re De Giacomo, 12 Blatch., 401.

$ 84. The provision in the constitution that no warrant shall issue except upon probable cause, supported by an oath or affirmation, describing the person to be seized, is not satisfied by the affidavit of an officer, who, upon the relation of others whose names are not disclosed, swears that, upon information, he has reason to believe, and does believe, the person charged has committed the offense charged. In the Matter of a Rule of Court Prescribing the Duties of Circuit Court Commissioners in Certain Cases, 3 Woods, 502.

$ 85. The clause of the constitution which requires that warrants shall be founded upon probable cause, supported by oath or affirmation, does not apply to a warrant for a debt due as a penalty for the violation of a city by-law. Costin v. Corporation of Washington, 2 Cr. C. C., 257.

$ 86. The provision in section 49 of the act of congress of July 20, 1868. empowering a supervisor of internal revenue to examine premises, and to issue summons requiring persons to appear before him, to testify under oath and produce their books and papers, is not unconstitutional as violating the provisions of the fourth amendment guarantying security against unreasonable searches and seizures. In re Meador, 1 Abb., 317.

$ 87. Cruel punishments.- Capital punishment by shooting, for murder in the first degree, is not a cruel or unusual punishment within the meaning of the eighth amendment to the constitution of the United States. Wilkinson v. Utah, 9 Otto, 134.

$ 88. Faith and credit.- Under sec. 1 of art. IV, and the laws of congress in pursuance thereof, the judgment of a state court is conclusive in the courts of all the other states wherever the same matter is in controversy, subject only to inquiry as to the jurisdiction of the court rendering it and notice to the defendant. Christmas v. Russell, 5 Wall., 290; Westerwelt v. Lewis, 2 McL., 512; Whitaker v. Bramson, 2 Paine, 220; Hampton v. McConnell, 3 Wheat., 234; Warren Manuf'g Co. v. Ætna Ins. Co., 2 Paine, 507; Mills v. Duryee, 7 Cr., 483 ; Thompson v. Whitman, 18 Wall., 457; Public Works v. Columbia College, 17 Wall., 521; McElmoyle v. Cohen, 13 Pet., 325; Pennoyer v. Neff, j Otto, 732. See JUDGMENTS.

$ 89. The clause requiring each state to give full faith and credit to the public acts, records, etc., of the other states, does not oblige a state to recognize the validity of a marriage entered into by citizens of one state in another in contravention and fraud of the laws of the former. Ex parte Kinney, 3 Hughes, 9 (SS 883–895).

8 90. A state law providing that no action shall be maintained upon a judgment, rendered in another state, upon a cause of action which would have been barred by the statutes of limitation of the former state, if the action were brought therein, is in conflict with sec. 1 of art. IV, providing that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, and the laws of congress in pursuance thereof. Christmas v. Russell, 5 Wall., 290.

& 91. Under that clause of the constitution which provides that full faith shall be given in each state to records, etc., of every other state, a plea to an action on a judgment is bad in a federal court, which would be bad in the courts of the state in which the judgment was rendered. Armstrong 1. Carson, 2 Dal., 301; Pennoyer v. Neff, 5 Otto, 732.

$ 92. Under that clause of the constitution which provides that each state shall give full effect and credit to the judicial proceedings, etc., of erery other state, and the laws of congress

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